Last week, the Supreme Court issued a first-ever code of conduct for Justices. It is not a set of rules designed to redress past ethical breaches and prevent future ones but rather a defense brief arguing that there have been no ethical breaches to redress and prevent. Recent reporting had caused public concern about the Justices’ conduct, such as Clarence Thomas’s undisclosed receipt of several expensive gifts from the billionaire Harlan Crow and Samuel Alito’s failure to recuse himself from cases that involved the hedge-fund manager Paul Singer, after Singer had provided Alito a private flight to a vacation in Alaska. (Thomas has said that he was following guidelines in place at the time; Alito has said that a reasonable person would not think that an appearance of impropriety occurred.) As the Court seems to confess in its preamble to the code of conduct, it was imperative to disabuse the public of its misbegotten notions of what conduct is ethically appropriate for Supreme Court Justices. Whether the code is a setting out of rules that Justices have been following all along or a set of rules retrofitted to excuse their scandals, none of the alleged ethical breaches by Justices that have been reported in the past several years would likely be a violation of the new code of conduct.
The code is organized into five “Canons,” followed by a “Commentary.” It is typical for an ethics code to list what one cannot do, but Canon 4 of this code provides a long list of “extrajudicial activities” that Justices may, or are even encouraged, to engage in without any ethical qualms. For example, a Justice “may attend a ‘fundraising event’ of law-related or other nonprofit organizations” as long as the Justice is not “knowingly” a speaker, a guest of honor, or featured on the program. That permission may well put Thomas’s attendance at multiple Koch-network fund-raising events in the clear. And because the code imposes a narrow definition of a “fundraising event” as one in which “proceeds from the event exceed its costs” or “donations are solicited in connection with the event,” Sonia Sotomayor speaking at a luncheon with donors to Clemson University in 2017, or Elena Kagan attending a dinner with donors to the University of Colorado after a speech there in 2019, may not even raise questions. The same goes for conservative Justices’ speeches at Federalist Society events. Last year, after the Court overruled Roe v. Wade, Alito and Amy Coney Barrett spoke at the group’s annual convention and received standing ovations. Neil Gorsuch gave a speech at a Federalist Society event that was closed to the press that same year, alongside Mike Pence and Ron DeSantis.
The code appears to condone Justices’ close associations with the Federalist Society, which have raised concerns because of the organization’s centrality to the conservative legal movement and its powerful influence on judicial appointments. The code explicitly allows a Justice’s participation and membership in “a nonprofit organization devoted to the law, the legal system, or the administration of justice”; the Federalist Society describes its mission as being “dedicated to reforming the current legal order.” The code also permits a Justice to participate in “a nonprofit civic, charitable, educational, religious, or social organization,” which covers Thomas’s deep involvement in the Horatio Alger Association. It even specifies that a Justice may assist such an organization “in planning fundraising activities.”
The code warns that a Justice should consider whether speaking or appearing before a group “would create an appearance of impropriety in the minds of reasonable members of the public.” It then establishes by fiat that, “except in unusual circumstances, no such appearance will be created,” when a Justice speaks to a “group associated with an educational institution, a bar group, a religious group, or a non-partisan scholarly or cultural group.” This provision seems in part aimed at putting beyond reproach Justices who speak at law schools, including the conservative-leaning Antonin Scalia Law School, which has welcomed Thomas, Gorsuch, and Brett Kavanaugh onto its faculty. It answers criticisms of Barrett, who spoke in 2021 at the University of Louisville, where she was introduced by the Senate Minority Leader, Mitch McConnell, and urged the audience not to see the Court as a partisan institution. The code specifies that teaching, for which Justices may be paid, includes not only classroom teaching but “participating in an educational program of any duration that is sponsored” by an educational institution, thus encompassing, for example, boondoggle trips to Europe to which law schools have treated Justices.
Justices have been criticized for using Court resources and staff to help produce and promote books for which they may receive millions of dollars. Sotomayor in particular has been accused of using staff in her chambers to gin up orders of her books for purchase at events where she is speaking. The code says that the conduct is fine: “A Justice should not to any substantial degree use judicial chambers, resources, or staff to engage in activities that do not materially support official functions or other activities permitted under these Canons.” Since the canons make clear that writing books and speaking at events that sell those books are permitted activities, the code allows a Justice to use Court resources and staff—funded by taxpayers—to engage in them. In the commentary appended to the code, the Court states that “consistent with historic practice, chambers personnel including law clerks may assist Justices with . . . activities described in Canon 4.” The Code therefore even permits Justices to use Court staff to help with fund-raising for organizations.
Much of the scandal around Thomas has concerned expensive gifts that he received from wealthy friends, including luxury vacations, a real-estate transaction, tuition for a grandnephew, and a generous loan to purchase his R.V. The code does not contain new rules on gifts but says that Justices should comply with the U.S. Judicial Conference’s regulations on gifts, which governs other federal judges. Under those regulations, as a general rule, Justices can receive expensive gifts as long as they disclose them, and if the giver doesn’t have business before the Court. The code says nothing that would make it a breach to receive gifts like ones that Thomas received. The concerns about gifts that were given to his wife, Ginni, seem to be addressed in the code’s statement that “any member of the Justice’s family residing in the household” can accept gifts “to the extent that a Justice would be permitted to do so by the Judicial Conference Gift Regulations.”
More serious concerns about Clarence Thomas’s conduct center on questions of recusal. In 2022, he participated in a case in which the Court ruled that Trump’s White House records should be turned over to the House committee investigating the January 6th attack on the Capitol. Thomas was the only dissenter. Ginni Thomas had reportedly pressured Trump’s White House chief of staff, Mark Meadows, to overturn the 2020 election results, in text messages later obtained by the House committee. The code states that a Justice should disqualify himself if he knows that his spouse has an “interest that could be affected substantially by the outcome of the proceeding.” The key word here is “knows,” which is a high standard. Under the new code, Clarence Thomas would only need to recuse himself if he knew—not merely believed, suspected, or guessed—that the Court’s decision could substantially affect his wife’s interest. Ginni Thomas testified to Congress that she did not speak with her husband about her activities regarding the 2020 election.
Similarly, nothing in the code requires Alito to recuse himself from cases involving Paul Singer, who, in 2008, paid for Alito’s private jet to Alaska. The code says recusal is only needed when “the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” Presumably, those who believe that Thomas and Alito should have recused themselves under this standard would be deemed either unreasonable or not aware of all relevant circumstances. The code furthermore declares that the mere filing of an amicus brief does not require a Justice’s recusal. That means the Court does not consider it a conflict of interest for Justices to sit on a case in which people who gave them or their spouses expensive gifts filed an amicus brief. That also seems to preëmpt ethical concerns about Justices or their spouses hobnobbing with people or groups that often file amicus briefs in cases before the Court.
It should be obvious that “a Justice should not speak at an event sponsored by or associated with a political party or a campaign for political office.” But that does not prohibit a Justice from attending such events. So, under the code, criticisms of, for example, Kavanaugh’s attendance at a holiday party hosted by the chairman of the Conservative Political Action Conference and attended by many conservative political figures would fall flat.
The code of conduct for Justices of the Supreme Court will not prevent the kinds of ethical problems that led to its adoption, because its purpose appears to be to show that the Justices have been perfectly ethical. It was, the Court states, public “misunderstanding” that created the appearance of judicial impropriety. Under the rules that the Court stands by, the Justices have behaved ethically all along. It is no wonder that the Court prefers to regulate itself as it wills the whiff of scandal to fade. The Justices’ ethics code will be a “success” if announcing it appeases the public enough to forestall Congress from attempting to impose more restrictive ethics rules on them. ♦
